What steps should I take when two wills or a codicil are filed for the same person in probate in North Carolina?
1. Detailed Answer
When the Clerk of Superior Court receives more than one testamentary instrument for the same decedent, they cannot simply admit both wills or a codicil without resolving which document controls. North Carolina law provides a clear procedure to determine validity and priority. Follow these guidelines to protect estate assets and ensure the decedent’s final wishes prevail.
Gather and Preserve All Original Documents
• Locate every original will and codicil. Originals carry the strongest presumption of authenticity. Copies or drafts may not be admitted if an original exists.
• Provide the Clerk with the originals and clear evidence of each document’s date and execution.
File Notice of Caveat If There Is a Dispute
Under N.C. Gen. Stat. § 28A-1-23, any interested person may file a Notice of Caveat to prevent immediate probate of the first instrument presented. Filing a caveat stays all probate actions until the court hears evidence.
Link: N.C. Gen. Stat. § 28A-1-23
Initiate Probate or Will Contest Proceedings
• To probate a will, file a Petition for Probate under N.C. Gen. Stat. § 28A-2-3. The petition must list all known wills or codicils.
• If you contest validity, follow the contested proceeding rules in N.C. Gen. Stat. § 28A-3B-1. The court then schedules a hearing to evaluate:
- Proper execution and attestation
- Mental capacity and undue influence
- Revocation or revival under N.C. Gen. Stat. § 28A-2-2
Link: N.C. Gen. Stat. § 28A-3B-1
Determine Priority Between Instruments
Under N.C. Gen. Stat. § 28A-2-2, a later will or codicil generally controls earlier versions. However, if the later instrument lacks valid execution or has been revoked, the prior will may stand. The court will:
- Compare dates and attestations
- Assess any revocations or amendments
- Rule on revival of a revoked will if evidence supports it
Link: N.C. Gen. Stat. § 28A-2-2
Obtain Letters Testamentary or Administration
Once the court admits the valid will or codicil, the Clerk issues Letters Testamentary or Letters of Administration with the will annexed. The appointed personal representative then manages the estate according to the admitted instrument.
2. Key Steps to Follow
- Identify and secure all original wills and codicils.
- File a Notice of Caveat under N.C. Gen. Stat. § 28A-1-23 if you anticipate a contest.
- Prepare and file a Petition for Probate or a contest under N.C. Gen. Stat. § 28A-3B-1.
- Present evidence of proper execution, capacity, and absence of undue influence.
- Argue revocation or revival issues under N.C. Gen. Stat. § 28A-2-2.
- Attend the hearing and obtain the court’s ruling on the controlling document.
- Secure Letters Testamentary or Letters of Administration once the valid instrument is admitted.
Need Help Resolving Multiple Wills?
Dealing with more than one will or a codicil can delay estate administration and create family conflict. At Pierce Law Group, our attorneys guide you through every step. We ensure compliance with North Carolina statutes and protect the decedent’s true intent.
Contact Pierce Law Group today. Email us at intake@piercelaw.com or call us at (919) 341-7055 to schedule a consultation.
